Canon Law and Contraception (birth control)

Although Jesus of Nazareth referred only rarely to moral problems posed by sexual behavior of any kind and is not known to have said anything at all about the control of reproduction, his followers have not been nearly so reticent on these matters. Saint Augustine (354-430), whose views on sexual behavior have profoundly influenced, and often dominated, most subsequent Western discussions of the subject, saw the procreation of children as one of the three justifications for Christian marriage. The morality of sexual intercourse, he taught, was largely determined by the intentions of the spouses. If a married couple had sex with the specific intention of engendering offspring, they did so without sin. If they engaged in intercourse in some way calculated to avoid procreation, however, they committed a grave sin. Because Augustine was well aware that raising children was difficult, time-consuming, and expensive, he counseled married couples to cease having sexual relations as soon as they had produced one or two children. Abstinence, as Augustine saw things, was the only morally acceptable method of birth control.

Augustine’s views were shared by Saint Jerome (c. 347-419 or 420) and other contemporary church authorities and formed the basis for most subsequent treatments of contraception in the medieval church. The penitential handbooks, which supplied guidance for priests who heard the confessions of the faithful, instructed confessors to impose heavy penance upon women who engaged in contraceptive practices, such as drinking herbal potions or wearing magical charms that they thought would prevent impregnation. The penitentials likewise condemned men who engaged in coitus interruptus, oral sex, or anal intercourse.

Contraception first appeared as an issue in canon law (as distinct from theology) in the tenth-century treatise, Libri duo de synodalibus causes by Abbot Regino of Prum (d. 915). Regi-no’s work included a list of questions that bishops were to ask when visiting the local churches in their dioceses. Among those items, one that became known from its opening words as Si aliquis stated:

If someone to satisfy his lust or in deliberate hatred does something to a man or woman so that no children can be born of him or her, or gives them to drink, so that he cannot impregnate or she cannot conceive, let this be treated as homicide (Regino of Prum 1840, 2.89).

Authors of later anthologies of canon law, notably the Decretum of Burchard, bishop of Worms (1000-1025), included Si aliquis in their collections, although they usually identified it as the decree of a church council.

Another text on contraceptive practices, which opened with the word Aliquando, was also destined to have a long life in canon law. Ali-quando was a passage taken from Saint Augustine’s treatise On Marriage and Concupiscence, in which Augustine declared:

Sometimes this lustful cruelty or cruel lust even causes [couples] to procure poisons of sterility and if they are unable to extinguish or destroy the fetus in the womb, preferring that their child die rather than live, if it is already alive in the womb, they choose to kill it before it is born (Augustine of Hippo, 1902, 1.15.17).

Ivo, Bishop of Chartres (1091-1116), included Aliquando in one of his canonical collections entitled the Decretum. Ivo’s work, however, was not widely circulated. Aliquando became more broadly known only when it reappeared in a much more widely available work composed around 1140 by a canonist known as Master Gratian.

Gratian named his book A Harmony of Clashing Canons (Concordia discordantium canonum). That colorful but cumbersome title soon gave way in common usage to the shorter and more conventional name Decretum. Although it was not officially commissioned or approved by any pope, Gratian’s Decretum quickly emerged in practice as the basic textbook for the study of canon law in the western church. Every canon lawyer needed to be familiar with the book and from it every canon lawyer learned as a student that contraceptive intercourse was incompatible with Christian marriage and was, in fact, a species of fornication. It followed that everyone who practiced contraception, married or not, should be subject to punishment. Canonists discovered this not only from Aliquando, but also from other texts that Gratian brought together with it under the heading “Those who procure poisons of sterility are not spouses but fornica-tors” (Gratian 1959, C. 32 q. 7 c. 11; for the canonistic citation system employed here see Brundage, 1995, 190-205). Law students also learned from this section of Gratian’s book that contraception was contrary to natural law and thus constituted a serious offense against God, against the church, against marriage, and against the rightful order of Christian society. In short, contraceptive intercourse or even the intention to engage in contraceptive intercourse, whether within marriage or outside of it, was a crime, and a major crime at that.

Dutch women protest outside the residence of the Papal Nuncio on the fifth anniversary of the pope’s encyclical forbidding mechanical means of birth control.

Gratian, for whatever reason, had not chosen to include the other major condemnation of contraceptive practices, Si aliquis, in his collection of canon law. As the papal chancery continued to issue new laws, mainly in the form of decretals, after Gratian’s Decretum was completed, it became increasingly urgent to compile a supplement to Gratian’s work. In 1230, accordingly, Pope Gregory IX (1227-1241) commissioned Raymond of Penyafort (c.1180-1275) to put together an official collection of the new law. The terms of Raymond’s commission, among other things, authorized him to incorporate in the new work any earlier canons that seemed to merit inclusion. One of the older canons that Raymond selected for inclusion was Si aliquis. Thus in 1234, when Gregory IX promulgated the new collection, under the formal title of the Decretals of Gregory IX, this canon reappeared, this time with papal authority behind it. Because Si aliquis described as homicide sexual techniques that were designed to avoid conception, Raymond of Penyafort placed in book five of the Decretals, which dealt with criminal law, a section that contained other canons that dealt with homicide. Contraception thus remained legally a type of homicide in the canon law of the Roman Catholic Church until 1917.

In addition to these two older canons, Raymond added a new canon, Si conditiones, dealing with contraception. Whereas both of the older canons on the subject treated contraception as a crime, Si conditiones placed the practice in the context of matrimonial law. The new canon ruled that, if a person married with the intention of avoiding having children, the marriage was invalid.

The addition of Si conditiones to the two older canons that prohibited contraception completed the legislative basis for medieval canonistic treatments of the matter. Academic lawyers could explore the limits and implications of the policy that these canons expressed, and often did so at length, but their analysis added little of substance to it.

As a practical matter the two canons that criminalized contraception, Aliquando and Si aliquis, were virtually impossible to enforce by formal judicial process. In the present state of knowledge of the records of the medieval ecclesiastical courts (Donahue, 1989, 1994) it is impossible to say with certainty whether any defendants were ever prosecuted in ecclesiastical courts for fornication or homicide because they had practiced contraception. It is highly unlikely, however, that such actions, even if brought, could often have succeeded, given the stringent standards of the canonical law of proof.

Criminal prosecutions based on either of these canons were thus extremely rare. The force of Si aliquis and Aliquando was felt instead, not in the courts that punished crimes publicly, but rather in confession, the private court of conscience. From 1215 onward, canon 21 of the Fourth Lateran Council required western Christians to confess their sins to a priest at least once a year. Evidence concerning the effectiveness of this decree is fairly sparse, but what there is of it seems to show that its provisions were in fact often observed, and prosecutions were certainly brought in church courts to punish those who failed to comply with them. Confessors were directed to question penitents closely, among other things, about the use of methods to avoid procreation and, so far as one can tell, apparently did so routinely.

The consequences of Si conditiones, at least in theory, were entirely different. This canon formed part of the church’s matrimonial law and potentially furnished grounds for the annulment of marriages from which one or both of the parties wished to escape. Medieval and early modern ecclesiastical courts, however, seem to have heard few, if any, annulment cases based on this canon. Indeed, they heard remarkably few annulment cases based on any grounds. It was not until 1904, in fact, that we learn of a case in which the practice of contraception under the terms of Si conditiones was successfully invoked as grounds for an ecclesiastical annulment in the courts of the Roman curia.

The emergence at the beginning of the twentieth century of the use of contraception as grounds for invalidating a marital union reflected changes in society and technology in the modern world. Beginning in France during the late eighteenth century the practice of voluntary birth control spread rapidly to other parts of Europe, to the United States, and more slowly through the remainder of the industrialized world. This spread reflected in part the social consequences of the Industrial Revolution, which for many couples made it less necessary, and less attractive, to produce numerous progeny. The increased frequency of the use of contraceptive techniques also stemmed in part from the appearance of new, more effective, and cheaper methods of birth control.

Religious authorities, especially among Roman Catholics, at first reacted to these developments cautiously, advising confessors not to pry too deeply into the sexual practices of married penitents, many of whom no doubt genuinely felt that no sin was involved in adopting prudent measures to control the size of their families. Leading bishops and theologians, however, increasingly harked back to the Augustinian notion that procreation was a primary goal of marriage. From this premise, they concluded that efforts to limit family size contradicted fundamental Christian values. This led church authorities during the nineteenth and early twentieth centuries to attack contraception with increasing zeal and vigor.

At the same time, the Catholic Church was in the process of reorganizing its legal system. Codification was all the rage among European jurists in the late nineteenth and early twentieth centuries. One nation after another sought to restructure its existing legal system in a more systematic and “scientific” form. France had led the way when it enacted the Napoleonic Code civil in 1804.Two generations later Italy adopted the Codice civile in 1865, and then Spain created its Codigo civil in 1889. After tumultuous debates the German Reichstag approved the Burgerliches Gesetzbuch in 1895, and Switzerland replaced its cantonal laws with a common civil code in 1907. Most other European countries revised their laws as well, as did all the nations of Latin America and others even further removed from European traditions, such as Japan in 1898 and Turkey in 1926. It was thus no great surprise when Pope Pius X (1835-1914) in 1903 authorized Pietro Gasparri (1852-1934) to undertake a codification of the laws of the Catholic Church.

In the process of constructing the new code, Gasparri and the commission that he headed necessarily had to confront the confusing, and largely inoperable, treatment of contraception in the existing law. What Gasparri did, first of all, was to scrap the unworkable criminal approach enunciated in Aliquando and Si aliquis. Neither of those canons had ever been seriously enforced. Gasparri, sensibly enough, saw no future in continuing those failed approaches. Instead he chose to conflate the policy enunciated in Si conditiones, which made the practice of contraception grounds for matrimonial annulment, with the provisions of another thirteenth-century canon, Tua nos, which dealt with simulated consent to marriage. By combining the policies that undergirded these two decretals, Gasparri was able to formulate a new canon that in effect enabled canonical courts to invalidate any marriage where either partner from the outset intended to use contraceptive practices to limit family size.

This formulation became part of the Code of Canon Law that Pope Benedict XV (1854-1922) promulgated on 27 May 1917 and that took effect on 19 May 1918. The revised Code of Canon Law, promulgated by Pope John Paul II (1920-) on 25 January 1983, repeated this canon with one slight, but significant, alteration. The 1917 version provided that

If, however, either or both of the parties by a positive willful act exclude marriage itself, or all right to the conjugal act, or some essential element, or any essential property of marriage, that party contracts invalidly (Codex iuris canonici, 1917, can. 1086 § 2).

The 1983 version omitted the phrase “or all right to the conjugal act,” which potentially left the door ever so slightly ajar for a possible revision of the church’s ban on contraception.

Canonical opposition to contraception rested ultimately upon theological doctrines, which approached the subject as a moral, rather than a legal, issue. Catholic theologians until the end of the nineteenth century unreservedly condemned all attempts at birth control as inherently sinful. Some theologians, to be sure, were hesitantly prepared to tolerate what they called amplexus reservatus, by which they meant uncon-summated marital intercourse, in which the couple terminated coitus before they achieved orgasm. Amplexus reservatus was first discussed by the canonist Huguccio (d. 1210) late in the twelfth century, but the idea was not widely accepted, or even widely discussed, by theologians until the twentieth century. Few couples felt much inclined to adopt it, for understandable reasons, and its importance was more theoretical than practical.

Modern Catholic theologians have been considerably more intrigued by the moral implications of the so-called rhythm method of birth control. This stemmed from the discovery by nineteenth-century biologists that female mammals, including humans, can conceive only during certain periods. Theologians vigorously debated the question of whether it was sinful for married couples to deliberately limit their sexual activity only to those periods when conception was impossible. Such a practice, according to some, was “natural” and hence morally acceptable, as opposed to all other methods of reproductive control, which they described as “artificial” and therefore morally wrong. In 1930 Pope Pius XI (1857-1935) in the encyclical Casti connubii ruled that deliberate avoidance of reproduction through use of the sterile period was sinful. His successor, Pius XII (1876-1958), substantially modified this position, however, when he declared in 1951 that use of the sterile period to avoid procreation might be appropriate, at least for certain couples under certain conditions.

Catholic doctrine on contraception has become the subject of repeated controversy, both among Catholic and non-Catholic theologians, throughout the second half of the twentieth century. In March 1963 Pope John XXIII (1881-1963) appointed an international commission to study the whole matter. By the time the commission finished its work, however, John XXIII had been succeeded by Pope Paul VI (1897-1978).The final report of the commission on contraception placed Paul VI in a dilemma, because the commission, as well as a number of bishops, suggested that the ban on “artificial”birth control seemed itself suspiciously artificial and that the issue of contraception should be left to the consciences of individual married couples. To adopt that advice would have meant reversing what was by this time an embarrassing chain of earlier papal pronouncements, which Paul VI declined to do. Instead, on 25 July 1968, he issued a new encyclical, Humanae vitae, in which he once again condemned Every action which, either in anticipation of the conjugal act, or in its accomplishment, or in the development of its natural consequences, proposes, whether as an end or as a means, to render procreation impossible (Paul VI 1968, § 14).

He did, however, reaffirm that in some vaguely defined situations that might arise “from the physical or psychological conditions of husband and wife, or from external conditions” it might be permissible for couples To take into account the natural rhythms immanent in the generative functions, for the use of marriage in the infecund periods only, and in this way to regulate birth without offending the moral principles which have been recalled earlier (Paul VI 1968 § 16).

John Paul II has repeatedly reaffirmed this doctrine. It thus remains the unyielding position of the Roman Catholic magisterium to this day.

Most other Christian churches, however, have rejected Rome’s teachings on contraception. In the Anglican Communion, for example, the 1930 Lambeth Conference held that married couples had a moral right to employ contraceptive measures when they deemed that there was “a morally sound reason” for them to do so, and the 1968 Lambeth Conference explicitly repudiated the teachings of Humanae vitae. Among the Orthodox churches there appears to be no firm agreement on the issue.

The belief that the procreation of children is a divinely mandated duty of married couples has a long, rich history that stretches back into the furthest depths of Judeo-Christian culture. That strand of belief, however, does not intrinsically require couples to have as many children as possible, much less that conjugal intercourse be directed exclusively toward reproduction. Catholic law and theology adopted those views neither from Mosaic law nor from the teachings of Jesus. These doctrines originated instead in pagan beliefs, more specifically in Stoic philosophy. Their persistence in the Catholic law and theology is one of the stranger ironies in the history of western morality.